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Tuesday, July 26, 2011

The Australian campaign continued

Last night's ABC Media Watch "The politics of privacy" was devoted entirely to examination of the issue ( informative and fair with examples of the media problem) and today's The Australian again elevates privacy (this time about political parties and their exemption from the Privacy Act) to front page lead status. This doesn't quite gel with the paper's editorial "ALP out of touch on privacy" that dismisses the "privacy frolic" as having "the hallmarks of being conjured up by ministerial advisers who have no understanding of the priorities of working families. Instead of focusing on the serious issues confronting government.."And that line doesn't gel with News management view, brought to attention last night when Jonathan Holmes quoted Director Corporate Affairs Greg Baxter on ABC local radio in Perth last week:

The debate about privacy, in our view, has been coming for a long time ...
... the government has chosen right now to bring it back, I think there's no doubt that that's politically opportunistic ...

But I don't think that it means that we shouldn't have a very healthy debate about privacy, or a very healthy debate about the role of media in a democracy.

I don't recall those (cautious in Holmes description) remarks being reported in News publications. "Cautious"(or welcoming) aren't words that come to mind in reading their coverage to date.

But the front page was just a lead in to coverage of privacy elswhere in The Australian today:Hedley Thomas seems to be suggesting the need for a full blown inquiry into privacy, reporting that police unions want an examination of the practices of government anti-corruption bodies.
(Memo Thomas: we had one that ran from 2006 to 2008. A lot has happened since, maybe this is an idea that has merit, but it might be best to deal with some of the issues that cropped up last time and are still relevant before we start again.)

Former Queensland Premier Peter Beattie chuckles his way through a piece that tells us "stop dreaming", we get the media we deserve.

Milanda Rout and Sean Parnell confirm, from the commission itself, that the Australian Law Reform Commission consideration of privacy including the recommended statutory cause of action, was general in nature not aimed specifically at the media. Amen. That hasn't had much recognition in the paper's coverage to this point. But in running over the few complaints received by the federal and NSW privacy commissioners concerning the media, there is no mention of the fact that media organisations are subject to co- regulatory and self regulatory schemes (that have nothing to do with the privacy commissioners) that seek to ensure that privacy is adequately protected. As pointed out here yesterday the ALRC found aspects of these schemes wanting. Neither the government nor media leaders have said much about this so far.

Economics Editor Michael Stutchbury wants to remove the privacy issue from the "grip of the lawyers, particularly those with a rights agenda or a political grudge." But he shows he was too busy attending lectures on property rights to spend any time on political science or the law, given he sees some sort of legal plot in "elevating privacy to a fundamental human right..." through the "extremist "tort of invasion of privacy".
(Memo Stutchbury: Article 17 UN Covenant on Civil and Political Rights-entry into force for Australia 13 November 1980-and the basis for the exercise of power to enact the Federal Privacy Act 1988 which only partially gives the Covenant force in Australian law)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Everyone has the right to the protection of the law against such interference or attacks.)

And Legal Editor Chris Merritt, reports that the media (well at least journalists not in jail after any legislation passes) will have the public interest in publication of information on their side in any law suit that might eventuate from all this, telling us that a reading of tea leaves reveals a "shift" in Minister O'Connor's position, a "split" between what the minister is talking about and the ALRC recommendation, and a "new approach" that would allow a public interest defence "that had been considered and rejected by the commission." (See yesterday's post pointing out where I think Merritt was wrong in saying that a raft of desirable defences from the media's point of view had been rejected by the commission.)

(Memo Merritt: In its final report the Commission accepted submissions in response to its earlier discussion paper that allowing a public interest defence would inappropriately give greater weight to privacy than other public interests.

"Arguably, it would
allow unmeritorious claims to proceed, with defendants being forced to wait
until the defence case was called before evidence supporting the defence case was
led."[74.144]

The commission then looked at ways to rectify this:

"Rather
than attempt to protect other rights through a defence, the ALRC agrees it
would be better in principle and in practice to add an additional element to
the cause of action for a serious invasion of privacy. This would ensure that
privacy interests are not privileged over other rights and interests.[74.147]

In other words what the commission had in mind was that an integral element in making a case in court would be whether "the
public interest in maintaining the claimant’s privacy outweighs other
matters of public interest—including the interest of the public to be
informed about matters of public concern and the public interest in
allowing freedom of expression." Convincing the court that privacy trumped the public's interest in being informed, and
allowing freedom of expression would be elevated from a matter for the
defence to an integral element of the cause of action. If the court didn't accept that the plaintiff had crossed this hurdle the defendant, who would have had a right to be heard on the matter, wouldn't have a case to answer.

The commission's recommendation ( see the discussion at [74.143-74.157] includes:

In determining whether an individual’s privacy has been
invaded for the purpose of establishing the cause of action, the court must
take into account whether the public interest in maintaining the claimant’s
privacy outweighs other matters of public interest (including the interest of
the public to be informed about matters of public concern and the public
interest in allowing freedom of expression).

So much for discovery in the minister's remarks in the last week of an interest in a public interest defence "that had been considered and rejected by the commission.")

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.